The federal Office of Surface Mining has contacted the state regarding the status of coal mining permits for the Wishbone Hill site near Palmer. Last month, the state gave Usibelli Coal the go-ahead to begin mining, after years of delays and legal hurdles. But OSM has criticized the state Department of Natural Resources for it’s handling of the many extensions and renewals of the permit since 1991.
In October, Usibelli Coal got the news: the state approved renewal of the Wishbone Hill mining permits, which allows Usibelli to operate the mine.
This month, [Nov. 4] in a letter to the state’s coal mining regulatory program director, Russell Kirkham, the federal Office of Surface Mining, Reclamation and Enforcement, OSM for short, upholds the state’s decision, but not for the reasons that DNR had expected.
The state’s final decision on the renewal of the permits for a five year term is not in question, according to OSM’s Robert C. Postle, who authored the letter. But Postle pointed out the state’s allowance of extensions and it’s failure to pull the permits because of inactivity at the mine site, are not within the provisions of the coal mining regulatory program.
Kirkham says he can’t discuss the letter or it’s contents, because the matter is under appeal.
The Trustees For Alaska legal firm is appealing Wishbone Hill’s October permit approval. Since Usibelli began work on the mine in 2010, Trustee attorneys have thrown legal challenges against operations at Wishbone Hill, based on the premise that the mining permits are invalid. Trustee attorney Vicki Clarke says until now, OSM had agreed with those who are challenging the permits
“The final decision was very recent, and it is a complete 180 (degree) from the original decision, and in our opinion, isn’t consistent with the law.”
The federal government regulates coal mining in the US, under the 1977 Surface Mining Control and Reclamation Act. The federal act allows individual states to develop coal regulatory programs consistent with federal law. Alaska has developed its own program under the Alaska Surface Mining Control and Reclamation Act of 1983.
According to Postle’s letter, both the federal and the state regulatory programs require mining to commence within three years of the issuance of a permit. If not, the permit becomes invalid. Reasonable extensions are allowed. But, Postle says here’s the rub. Wishbone Hill’s two permits were granted in 1991, but since then, the mining operation changed owners twice, and DNR granted an extension only once in the 18 years between 1991 and 2010, when Usibelli began operations.
Postle says, in his letter, the state erred, not because it now allows Usibelli to mine, but because DNR never officially terminated the permits due to the earlier owner’s inaction at the mine site. He says, permits do not just terminate by themselves – official action must be taken by authorities.
Postle says Usibelli is not at fault, because the permits it was operating under in 2010 were never invalidated by the state, so in effect, Usibelli was not operating without a permit. Lorali Simon is Usibelli Coal’s spokesperson.
“We have maintained the legitimacy of these permits since day one. Usibelli acquired the leases and the permits to the Wishbone Hill project in 1997, and we have actively maintained them with a desire to further develop the Wishbone Hill coal mine.”
But a number of conservation groups in the Matanuska Valley and the Chickaloon Tribal government have been fighting the mine. Lisa Wade represents the the Chickaloon Village Traditional Council. Wade says the OSM’s decision only highlights the fact that the state failed to pay attention.
“If the state isn’t managing its permit this closely, if they are not following their own rules at this stage, then, if operations are to start, would they follow their own rules in ensuring the health and the safety of the community, which has changed dramatically since 1991, when the permits were first issued.”
Wade says suburban homes now are in close proximity to the mine site, as is an elementary school run by the tribe. And she adds, the tribe has been requesting tribal government to government consultation with OSM since 2011, to no avail.
“Because we are pressing for a review of this file. Of the entire case, because right now, this project, if it goes forward, has the possibility of damaging ecosystems, and our entire community.”
And Trustee Vicki Clarke hints at a looming lawsuit.
“Ultimately, the court needs to make a determination whether the application of the law is legal. And so, the appeal will be before DNR, and then, we’ll see what ends up happening after that.”
But Postle says that neither federal nor Alaska coal regulations expressly state whether permit termination occurs automatically at the end of three years, or or whether administrative action is required. So, he concludes, the federal government cannot require Alaska to invalidate a permit simply because a permit holder misses the three year deadline. The permit will not terminate automatically, rather, it remains valid until the regulating authority takes action to terminate it.
“Courts do not favor automatic forfeitures where it is not mandated by “clear and unequivocal” language, he said.
Postle further states that Alaska’s coal regulatory program managers need to be explicit and timely in issuing notice of termination to permit-holders who do not meet the three year deadline. He says mining permits cannot be kept alive by default, and recommends that the state work with his office on a plan to address the state’s shortcomings.